C. Kasturi
& Ors Vs. Secretary, Regional Transport Authority & Anr [1996] INSC 160
(31 January 1996)
Ramaswamy,
K.Ramaswamy, K.Ahmad Saghir S. (J) G.B. Pattanaik (J)
CITATION:
1996 AIR 1664 JT 1996 (3) 458 1996 SCALE (2)900
ACT:
HEAD NOTE:
WITH CIVIL
APPEFL Nos.3923/86, 3922/85, 4049/87, 4383/90, 3776/88, & 4816/91 AND CIVIL
APPEAL NO. 4463-65 OF 1996 (Arising out of SLP (C) Nos.16421/9O, 2074/91 and
4741/9O)
O R D E
R
Leave granted.
These
appeals raise a question: whether Rule 282(2)(ii) of the A.P. Motor Vehicles
Rules, 1964 would be read into the notified route and given an interpretation
extending 8 Kms. from the municipal limits of the town service or whether the
conditions of the scheme and exceptions engrafted therein are strictly to be
construed? The facts are not fairly in dispute. In the first case, the
appellant had obtained a temporary permit under Section 62 of the Motor
Vehicles Act, 1939 (Act No.4 of 1939) (for short, the 'repealed Act') which
stands repealed by Motor Vehicles Act, 1988. But we are concerned on the facts
of this case with the interpretation of the scheme and the Rules under the
repealed Act. Admittedly, the appellant has been running the vehicle on the
town service, Tirupati, a Pilgrim Center of Lord Venkateswara Swamy known in
north India as Balaji, in Andhra Pradesh
obtaining renewals on temporary basis from time to time. We are informed that
in other cases they are pakka stage carriage permit holders obtaining permits
under Section 58 of the repealed Act. Chandigarh to Renigunta via Tirupati is the notified approved route under Chapter
IVA of the repealed Act. The appellants had relied upon a memorandum issued by
the Government dated November
9, 1981 in which it
was stated that the town service stood extendible to a distance of 8 Kms. from
municipal limits.
When
the appellants were prohibited to run their town service upto the extent of 8 Kms.
on the basis of such memorandum, they filed writ petitions in the High Court In
Writ Petitions No.1995 of 1983, the learned singles Judge of the High Court
held that by operation of the prohibitions contained in the scheme in Notes 2
and 3 thereof, the town service could not be extended upto a distance of 8 Kms.
from the municipal limits the same being contrary to the scheme.
Accordingly,
the Court dismissed the writ petition. Similar cases met with the same fate. in
W.A.Nos.434 & 431/84 and batch, the Division Bench of the High Court by
order dated 30.10.85 and in other cases on different dates, confirmed the same.
Mr. A.
Subba Rao, the learned counsel appearing for the appellants who led the batch,
contended that Rule 282(2(ii) expressly mentions that town service shall be
construed to be extendible to the outer limits of the municipality and so town
service would encompass 8 kms. from the municipal limits. Though it is notified
route, the appellants are entitled to run their vehicles on the notified route upto
a distance of 8 Kms. the same being a part of the town service. The
interpretation given by the High Court therefore, is incorrect in law. Shri G. Ramaswamy,
learned senior counsel appearing for the Corporation contended that there is a
distinction between muffasil service and town service. The town service is
intended to operate only within the town area Rule 282(2)(ii) requires to be
interpreted only when there is inter-section between the notified area and the
town service; the scheme is a complete code in itself The exceptions end rights
given in the scheme which law, requires to be interpreted strictly.
The
appellant in the first case having obtained a temporary permit under Section 62
of the repealed Act, it outlived its life the moment the period of four months
expires. He is not an existing operator on the route and, therefore. he cannot
come within the exceptions engrafted in the scheme. It is also contended that
if any permit is granted in the town service, in view of the language used in
the scheme and the exceptions engrafted, it shall not overlap more than 8 Kms. on
the notified route. If it so overlaps, there is a total prohibition for running
the vehicle in the notified route in town. The interpretation put up by the
High Court is, therefore, correct in law.
The
question, therefore, as posed earlier, is: whether Rule 282(2)(ii) would be
read into the notified scheme and given an interpretation extending the service
upto the distance of 8 Kms. from the limits of the town. Rule 282(1) reads
thus:
"Rule
202 Fixation to stages for stage carriages: (1) In the case of stage carriages
the Regional Transport Authority, shall, after consultation with such other
authority as it may deem desirable, fix stages on all bus routes except where
town service are plying. The maximum distance of such stage shall not
ordinarily exceed 6.4 Kms. When stages are so fixed, fares shall be collected
according to stages." Sub-Rule (2) of Rule 282 provides that the Regional
Transport Authority shall, subject to the following restrictions determine
which are town service routes. Rule 282(2)(ii) reads as under:
"No
route of town service shall extend more than 8 Kilometers beyond the limits of
the municipality or town from which it starts provided that this restriction
shall not apply to any town service routes, Which were in existence on the date
of coming of these rules into force or in respect of those routes for which
specific permission of the Transport Commissioner is obtained." A reading
of it makes it clear that no route of town service shall extend more than 8 Kms.
beyond the limits of the municipality or town from which it starts. The proviso
provided that the restrictions shall not apply to any town service routes which
were in existence on the date of coming of these rules into force or in respect
of those routes for which specific permission of the Transport Commissioner was
obtained.
The
Scheme is as under:
THE
SCHEME
1.
Route (Starting point and Chandragiri-Ranigupta terminus with important Via Tirupathi
(21Kms) intermediats stations and route length
2.
Area (Names of route with -do- starting points and term- ini and intermediate
stations and route length
3.
Whether town service or State Carriage/Moffussil moffussil service or service. both
4.
Maximum and minimum The following number of number of vehicles buses and
proposed to be proposed to be operated operated to the complete on each route
by the exclusion of all other State Transport Under- persons holding stage
taking to the exclusion, carriage permits on the complete or partial proposed
route and such or otherwise of other other persons holding stage persons:
carriage permits on the route overlapping completely or partially on the
proposed route except to the extent specified in the note hereunder.
a.
Maximum number 2.
b.
Minimum number 1.
c.
Type Saloon d. Capacity 40-60 Seating capacity
5.
Maximum and minimum The following number of number of trips proposed round
trips are proposed to be performed on each to be operated to the route by the
State complete exclusion of all Transport Undertaking to other persons holding
stage to the exclusion, complete carriage permits on the or partial or
otherwise of route overlapping completely other persons or partially on the
proposed route except to the extent hereunder.
a.
Maximum Number 14
b.
Minimum Number 7
6. No.
of vehicle intended to 10% of the total fleet be kept in reserve to required
for operation of maintain the service and scheduled service in the to provide
for special region will be kept in occasions. service.
7. The
arrangements proposed The existing and proposed for the housing, mainta- Depots
of the APSRTC will inence and repair of the provide for housing, vehicles
maintenance and repairs of the vehicles.
8. The
arrangements proposed Bus stations at important for the comfort and traffic
points and wayside convenience of the shelters are proposed to be passengers
constructed. In addition drinking water facilities will be provided at
important places during summer.
9. The
arrangements proposed At important traffic points for the stands and halts
where bus stations are on the route at which proposed to be constructed, copies
of time tables of time table boards will be the service are proposed exhibited.
to be exhibited 10.Whether it is proposed to Newspaper parcels unaccompa-
permits the carriage of nies luggage and postal mail goods in addition to the
bags will be permitted in passengers. addition to the passengers and their
personal luggage.
(BY
ORDER AND IN THE NAME OF THE GOVERNOR Of ANDHRA PRADESH) Note: This scheme
shall not affect;
1. The
State transport undertakings of the other states.
2. The
holders of the existing stage carriage permits in respect of town service
routes;
3. The
holders of the future stage carriage permits in respect of town service routes
having an overlapping of not more than 8 Kms. on the notified route.
4. The
holders of the existing stage carriage permits in respect of such route/routes
which overlap not more than 8 Kms. on the notified route;
5. The
permit holders of the existing stage carriage permits on the inter-state routes
overlapping the notified route.
This
is the scheme which was relied upon in the High Court and also before us as a
sample case. It is a scheme notified under Section 68-D(2) of the repealed Act
and it was approved under Section 68-D(3) after following the procedure
prescribed in Chapter IVA. Sections 68C, 68D-(3) and 68-FF are applicable to
the scheme. The schemes covered by Chapter IVA are now saved by 1988 Act in
Chapter V unless it is modified according to the said Act and continues to be
valid law under the 1988 Act. The distance of the scheme is 21 Kms. The route
is Chandragiri-Renigunta via Tirupati. In Col.5, it is stated that the maximun
and minimum number of trips proposed to be performed on each route by the State
Transport Undertaking is to the exclusion, complete or partial or otherwise, of
other persons. It is stated that the performance of the trips is to the
complete exclusion of all other operators holding stage carriage permits on the
route overlapping completely or partially on the route except to the extent
indicated in the scheme.
This
scheme shall not affect the exceptions mentioned in clauses (1) to (5) Clause
(2) provides right to ply on town service routes to the holders of the existing
stage carriage permits. Clause (3) provides the holders of future stage
carriage permits in respect of town service routes having an overlapping of not
more than 8 Kms. on the notified route; Clause (4) provides the holders of the
stage carriage permits in respect of such routes or routes which overlap not
more than 8 Kms., the notified route A reading of Clause (5) of the scheme and
the exceptions which require to be read together clearly indicates that on the
route on which State Transport Undertaking operates its service, the private
holders of the stage carriage permits existing or future holders are completely
excluded on the route overlapping, completely or partially, except to the
extent indicated therein, i.e 8. K.M. The scheme itself has excluded certain
area. As indicated earlier, either the holder of the existing stage carriage
permit on the town service or future stage carriage service permit holders,
though entitled to ply their vehicles in a town service inter-secting notified
route, the overlapping "shall not be more than 8 Kms. on the notified
routes as the case may be".
"Route"
has been defined under Section 2(28A), to dispel any confusion consequent upon
seeming acceptance by this Court in Nilkanth Prasad & Ors. vs. State of Bihar [1962 Supp (1) SCR 728] it means
"a line of travel which specifies the highway which may be traversed by a
motor vehicle between one terminus and another". Permit is an
authorization to use stage carriage vehicle etc. to use such vehicle. The
permit having been granted on the notified route, the holder of the stage
carriage permit on the notified route is to operate or perform the trips on the
route only within the narrow exceptions engrafted in the scheme itself, It is
settled law which was reiterated by this Court in Ram Krishna Verma & Ors. vs.
State of U.P & Ors. [(1992) 2 SCC 620that the draft or approved scheme is a
law by itself and it has an over-riding effect on other Chapters of the Act. It
operates against everyone unless it is modified. It excludes private operators
from the area or the route or operation thereof covered under the scheme except
to the extent excluded under the Scheme itself. The right of private operator
to apply for and to obtain permits in Chapter IV of the repealed Act and the
relevant corresponding Chapter of the new 1988 Act to the extent of the
notified and approved scheme in Chapter IVA of repealed Act and corresponding
provisions in 1988 Act, has been frozen and prohibited. No private operator is
permitted thereafter, to operate his stage carriage or contract carriage on the
notified route except as provided in the scheme itself. The source of the
right, if at all it is available to seek, is only under the scheme. Chapter IV
to that extent stands excluded and S.T.U. gets exclusive right to ply its stage
carriage vehicles on the notified route/routes covered by the scheme.
In Adarsh
Travels Bus Service & Anr. vs. State of U.P & Ors. [1985 Supp (3) SCR
661] a Constitution Bench of this Court considered the effect of the scheme and
the right of the private operators, and stated thus:
"A
careful and diligent perusal of Sections 68-C, 68-D(3) and 68-FF in the light
of the definition of the expression "route" in section 2(28A) appears
to make it manifestly clear that once a scheme is published under section 68-D
in relation to any area or route or portion thereof, whether to the exclusion,
complete or partial of other persons or otherwise, no person other than the
State Transport Undertaking may operate on the notified area or notified route
except as provided in the scheme itself. A necessary consequence of these
provisions is that no private operator can operate his vehicles on any part or
portion of a notified area or notified route unless authorised so to do by the
terms of the scheme itself. He may not operate on any part or portion of the
notified route or area on the mere ground that the permit as originally granted
to him covered the notified route or area." After referring to the above
decision, this Court Smt. Afsar Jahan Begum etc. v. State of Madhya Pradesh
& Ors. etc. [JT 1996 (1) SC 604] held thus:
"In
this view of the matter, the only relaxation from the frozen notified route or
area from the scheme is as provided in the scheme itself. If any operator, or
any route intersecting the notified route, has of necessity, to ply the vehicle
strictly in conformity with the restrictive corridor shelter and no more. The
relaxation is not meant to sabotage the approved scheme but to subserve public
interest".
The
decision relied on by Mr. G. Ramaswamy in vs. State Transport Appellate
Tribunal Pondicherry & Anr. [(1982) 2 SCC 73] lays down the law and we
approve of it to be the correct law; under Section 62(1) of the Act, if
temporary permit is granted, it outlives its existence on expiry of four months
and it cannot be intended to be a continuous one for a number of years except
when permanent permit was given and application for renewal was pending as
envisaged in Section 62(1). If any renewal is to be made to a temporary permit,
it will be in violation of the statute. However, in this case, it is not
necessary for us to go into that question since that question did not directly
arise for our consideration.
It
would, thus, be clear that once a notified draft scheme has been approved and
published, the private operators operate their services on the notified route
strictly in accordance with the scheme only and within the exceptions engrafted
thereunder. By necessary implication, the "town service" as defined
in Rule 282(2)(ii) has to be read subject to the scheme in Chapter IVA of the
repealed Act. If so read, clauses 2, 3 and 4 are to operate as an exception and
they provide only a right to overlap not more than 8 Kms in the notified route.
Otherwise, the town service will cease to be town service and would get
transformed into a muffussal route and the private operator would run his stage
carriage along the line of the notified route which is impermissible. When so
read, though under Rule 282(2)(ii) town service extends upto 8 Kms. from the
municipal limits, that does not give any right to a holder of a town service
stage carriage permit to run his vehicle beyond 5 kms. on the notified route
nor does it extend to 8 Kms. overlapping on the notified route from municipal
limits. The memo is an administrative instruction issued by the Government
which cannot have an over-riding effect on the scheme since scheme by itself is
law unless the scheme is duly and legally modified under the provisions of the
repealed Act or the 1988 Act according to law. The Stage carriage holders of
permits stand excluded and thereby the private operators cannot operate on the
notified area or route overlapping more than 8 Kms. on the notified route.
The
appeals, therefore, merit no acceptance. They are accordingly dismissed but
without costs.
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